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July 29, 2008
VIA CERTIFIED AND REGULAR MAIL
RETURN RECEIPT REQUESTED
WNY Entertainment Group, Inc.
Attn: Daniel Cane
236 Delaware Avenue
Buffalo, NY 14202-2009
RE: EB-08-TC-2618
Dear Mr. Cane:
This is an official CITATION, issued pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended (the Act), 47 U.S.C. S: 503(b)(5),
for violations of the Act and the Federal Communications Commission's
rules that govern telephone solicitations and unsolicited advertisements.
As explained below, future violations of the Act or Commission's rules in
this regard may subject you and your company to monetary forfeitures.
It has come to our attention that your company, acting under your
direction, apparently sent one or more unsolicited advertisements to
telephone facsimile machines in violation of Section 227(b)(1)(C) of the
Communications Act, as described in the attached complaint(s). Section
227(b)(1)(C) makes it "unlawful for any person within the United States,
or any person outside the United States if the recipient is within the
United States . . . to use a telephone facsimile machine,
computer, or other device to send an unsolicited advertisement to a
telephone facsimile machine." As relevant here, an "unsolicited
advertisement" is "any material advertising the commercial availability or
quality of any property, goods, or services which is transmitted to any
person without that person's prior express invitation or permission."
Mere distribution or publication of a fax number does not establish
consent to receive advertisements by fax. Fax advertisements may be sent
to recipients with whom the sender has an established business
relationship, as long as the fax number was provided voluntarily by the
recipient. An established business relationship is defined as a prior or
existing relationship formed by a voluntary two-way communication between
a person or entity and a business or residential subscriber with or
without an exchange of consideration, based on a purchase, inquiry,
application or transaction by that subscriber regarding products or
services offered by such person or entity. This relationship must not have
been previously terminated by either party. A fax advertisement may be
sent to a recipient with whom the sender has an established business
relationship only if the sender also:
i. obtains the fax number directly from the recipient; or
ii. obtains the fax number from the recipient's own directory,
advertisement, or site on the Internet, unless the recipient has noted
on such materials that it does not accept unsolicited advertisements
at the fax number in question; or
iii. has taken reasonable steps to verify that the recipient agreed to
make the number available for public distribution, if obtained from a
directory or other source of information compiled by a third party.
Finally, in the event of a complaint or dispute, the burden rests with the
fax sender to demonstrate that it either obtained prior express permission
to send the facsimile advertisement or satisfied all the criteria
necessary to invoke the established business relationship exemption.
If, after receipt of this citation, you or your company violate the
Communications Act or the Commission's rules in any manner described
herein, the Commission may impose monetary forfeitures not to exceed
$11,000 for each such violation or each day of a continuing violation.
You may respond to this citation within thirty (30) days from the date of
this letter either through (1) a personal interview at the Commission's
Field Office nearest to your place of business, (2) a written statement,
or (3) a teleconference interview with the Commission's Telecommunications
Consumers Division in Washington, DC. Your response should specify the
actions that you are taking to ensure that you do not violate the
Commission's rules governing telephone solicitation and unsolicited
advertisements, as described above.
Please contact Delores Browder at (202) 418-2861 to arrange for an
interview at the closest field office, if you wish to schedule a personal
interview. You should schedule any interview to take place within thirty
(30) days of the date of this letter. You should send any written
statement within thirty (30) days of the date of this letter to:
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W., Rm. 4-C222
Washington, D.C. 20554
Reference EB-08-TC-2618 when corresponding with the Commission.
Reasonable accommodations for people with disabilities are available upon
request. Include a description of the accommodation you will need
including as much detail as you can. Also include a way we can contact you
if we need more information. Please allow at least 5 days advance notice;
last minute requests will be accepted, but may be impossible to fill. Send
an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs
Bureau:
For sign language interpreters, CART, and other reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty);
For accessible format materials (braille, large print, electronic files,
and audio
format): 202-418-0531 (voice), 202-418-7365 (tty).
Under the Privacy Act of 1974, 5 U.S.C. S: 552(a)(e)(3), we are informing
you that the Commission's staff will use all relevant material information
before it, including information that you disclose in your interview or
written statement, to determine what, if any, enforcement action is
required to ensure your compliance with the Communications Act and the
Commission's rules.
The knowing and willful making of any false statement, or the concealment
of any material fact, in reply to this citation is punishable by fine or
imprisonment under 18 U.S.C. S: 1001.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kurt A. Schroeder
Deputy Chief, Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
Enclosures
47 U.S.C. S: 227; 47 C.F.R. S: 64.1200. A copy of these provisions is
enclosed for your convenience. Section 227 was added to the Communications
Act by the Telephone Consumer Protection Act of 1991 and is most commonly
known as the TCPA. The TCPA and the Commission's parallel rules restrict a
variety of practices that are associated with telephone solicitation and
use of the telephone network to deliver unsolicited advertisements,
including fax advertising. 47 U.S.C. S: 64.1200(a)(3); Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991 -
Junk Fax Protection Act of 2005, Report and Order and Third Order on
Reconsideration, 21 FCC Rcd 3787 (2006) (2006 TCPA Report and Order).
We have attached one complaint at issue in this citation. The complaint
addresses a facsimile advertisement that contains the telephone number
716-854-2853, which your business utilized during the time period at
issue.
47 U.S.C. S: 227(b)(1)(C); see also 47 C.F.R. S: 64.1200(a)(3) (providing
that no person or entity may . . . use a telephone facsimile machine,
computer, or other device to send an unsolicited advertisement to a
telephone facsimile machine). Both the TCPA and the Commission's rules
define "telephone facsimile machine" as "equipment which has the capacity
to transcribe text or images, or both, from paper into an electronic
signal and to transmit that signal over a regular telephone line, or to
transcribe text or images (or both) from an electronic signal received
over a regular telephone line onto paper." 47 U.S.C. S: 227(a)(3); 47
C.F.R. S: 64.1200(f)(11). The Commission has stated that "[t]he TCPA's
definition of `telephone facsimile machine' broadly applies to any
equipment that has the capacity to send or receive text or images." Thus,
"faxes sent to personal computers equipped with, or attached to, modems
and to computerized fax servers are subject to the TCPA's prohibition on
unsolicited faxes. . . [although] the prohibition does not extend to
facsimile messages sent as email over the Internet." Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order, 18 FCC Rcd 14014, 14131-32 (2003) (2003 TCPA Report and Order).
47 U.S.C. S: 227(a)(5); 47 C.F.R. S: 64.1200(f)(13) (defining "unsolicited
advertisement" to specify that prior express invitation or permission may
be "in writing or otherwise").
See Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408-09
(1995) (1995 TCPA Reconsideration Order); see also 2003 TCPA Report and
Order, 18 FCC Rcd at 14128 (concluding that mere publication of a fax
number in a trade publication or directory does not demonstrate consent to
receive fax advertising).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. 64.1200(a)(3)(ii).
47 U.S.C. S: 227(a)(2); 47 C.F.R. 64.1200(f)(5); see also 2006 TCPA Report
and Order, 21 FCC Rcd at 3797-3799.
An inquiry about a store location or merely visiting a company website
does not create an established business relationship; an inquiry must seek
information about the products or services offered by the company. Once
established, nonetheless, a business relationship will permit an entity to
send facsimile advertisements until the recipient "terminates" the
relationship by making a request not to receive future faxes. 2006 TCPA
Report and Order, 21 FCC Rcd at 3798.
If a valid EBR existed between the fax sender and recipient prior to July
9, 2005, and the sender also possessed the facsimile number prior to July
9, 2005, the sender may send the facsimile advertisements to that
recipient without demonstrating how the number was obtained or verifying
it was provided voluntarily by the recipient. 47 U.S.C. S:
227(b)(1)(C)(iii); 47 C.F.R. S: 64.1200 (a)(ii)(C); see also 2006 TCPA
Report and Order, 21 FCC Rcd at 3796.
47 U.S.C. S: 227(b)(1)(C)(ii)(I); 47 C.F.R. S: 64.1200 (a)(ii)(A).
47 U.S.C. S: 227(b)(1)(C)(ii)(II); 47 C.F.R. S: 64.1200 (a)(ii)(B).
47 U.S.C. S: 227(b)(1)(C)(ii)(II); 47 C.F.R. S: 64.1200 (a)(ii)(B); see
also 2006 TCPA Report and Order, 21 FCC Rcd at 3795 ("[I]f the sender
obtains the number from sources of information compiled by third
parties-e.g., membership directories, commercial databases, or internet
listings-the sender must take reasonable steps to verify that the
recipient consented to have the number listed, such as calling or emailing
the recipient.").
2006 TCPA Report and Order, 21 FCC Rcd at 3793-9, 3795, 3812.
Federal Communications Commission
2
2
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554